Virginia to require ultrasound for abortion

Pending the governor’s signature, which he’s indicated will not be denied, Virginia will become the seventh state to mandate ultrasounds prior to an abortion.  This does not just mean that the vast majority of women seeking abortion are then required to undergo a transvaginal ultrasound.  This also means doctors are required to perform them, regardless of whether they think it necessary or best practice.  As one delegate said (in this earlier story), “This is the first time, if we pass this bill, that we will be dictating a medical procedure to a physician.”

32 thoughts on “Virginia to require ultrasound for abortion

  1. May I recommend mandatory prostate MRIs for the legislature and the governor? Once a term, I’d suggest. Unlike the digital exam, they involve penetration with a mechanical device that takes a significant amount of time.. That is, they are about as fun as a transvaginal ultra sound. And not really much more dangerous than carrying an unwanted child to term.

  2. Opps, that is for the male members, as it were. but still, why not check out the rectal health of the women?

  3. It’s scary to think that Federal mandates for health insurance could make this sort of procedure mandatory for the entire country.

  4. The VA legislation also mandates that that woman’s decision to view or not view the resulting ultrasound will be recorded in her medical record. Some media outlets (I can’t track them down right now) have reported that the Democrats tried to get a compromise passed that would limit the requirement to an ultrasound achieved by external means — but that was turned down. One of the many things that drives me crazy is the mantra that legislation like this “allows” women to have full information. Requiring is not the same as allowing. And the notion that one can get an image of what’s “really” going on in pregnancy by rendering the pregnant woman’s body invisible just makes my blood boil. A good article on Slate:

  5. One might reasonably infer from the OP that the law would condition all abortions specifically on transvaginal ultrasounds. For the sake of accuracy, that does not appear to be the case from my quick read of the legislative text.

  6. If only our country would prepare individuals better for life instead of insulting and oppressing them, that maybe then, the church and government (what happened to separation of church and state) would keep their laws and nose out of our business! So much for free people as stated in the Constitution and Declaration Of Independence.

  7. Still, it’s a clarification worth making.

    And upon reflection, I’m not so sure this actually means “most”, either. Doesn’t the bill implicitly leave the type of ultrasound to the doctor’s discretion? It’s not uncommon for transabdominal ultrasounds to be performed in the first trimester.. notes that “Transabdominal ultrasound cannot reliably diagnose pregnancies that are < 6 weeks' gestation. Transvaginal ultrasound, by contrast, can detect pregnancies earlier, at approximately 4 ½ to 5 weeks' gestation." That's not a huge discrepancy, time-wise. And remember that a doctor who is performing the ultrasound for no reason other than to comply with the law would not relying on the ultrasound to make a determination of the pregnancy in the first place. So he or she would arguably have even more leeway in terms of choosing the method of imaging, and opting for transabdominal even if transvaginal would yield a superior image. That suggests to me that only a small proportion of ultrasounds carried out under the law, not most, would actually need to be transvaginal. In fact, if an abortion doctor wanted to take a fairly aggressive yet non-frivolous intepretation of the law, he or she might conclude that it did not require any transvaginal ultrasounds at all.

  8. Nemo, I have not read the VA law, but I am very familiar with the similar proposed laws in OK and TX, and typically they specify that the doctor has to use the method that will produce the best image. During the ultrasound the visible anatomy of the fetus has to be described to the patient, so they need to use a method that yields enough detail to make this possible. In one state (I think it’s Michigan? But don’t quote me on that) they put into the law that they have to use the best imaging technology available.

    Anyhow I am not sure I get what you are pushing at. If we think that forced vaginal ultrasond for no medical reason is something close to state-enforced rape, why would it matter exactly what percentage of patients it applies to, as long as it’s a nontrivial percentage? The problem seems to be with the existential claim, not with the universal claim.

  9. Mandating medically unnecessary procedures is a violation of bodily autonomy. You don’t even need to go to Roe to establish that this and similar laws are unConstitutional. (Whether the courts will see it that way, is of course another matter.)

    Requiring doctors to perform medically unnecessary procedures is requiring them to violate basic medical ethics. You don’t even need to appeal to individual doctors’ moral consciences to establish that this and similar laws are immoral.

    That this and similar laws require *invasive* medically unnecessary procedures only makes these points more salient. It is not essential to their truth.

  10. Rebecca, the Virginia bill says simply that the ultrasound will be made pursuant to standard medical practice in the community. It contemplates that the external members and internal organs of the fetus may not be viewable or may not be present, and that only the gestational sac may be visible.

    At any rate, I’m not pushing(?) at anything; I was simply making an observation in response to something in the OP and then something Anne wrote. Might as well get all the details straight I suppose. I completely agree that the existential claim is key if [A] a forced transvaginal ultrasound for no medical reason is something close to state-enforced rape and [B] that this law would result in that. That doesn’t mean that the universal claim isn’t worth correcting though, right?

    Though I first noticed it in the OP, I’ve since read the universal claim repeated everywhere, it seems. I’m supposing that some people making the universal claim believe that it is important; I might guess (but would only be speculating) that this is because either they personally do not assent to A and/or B, or they judge that a great many other people would not assent to A and/or B.

    Adrienne, as far as I can tell, the class of doctors in Texas who fought the ultrasound law in court there never made the claim that the Texas law would require them to violate basic ethics (though they made a number of other claims). So I’m not sure how widely shared that view is even among medical professionals.

  11. Nemo: It seems to me that the phrase in the OP, “the woman seeking abortion is required to undergo a transvaginal ultrasound”, is ambiguous between the existential and universal reading. It’s awkwardly phrased (sorry profbigk!), because of course there isn’t just one woman. ‘Women’ or ‘a woman’ would have been less awkward. Any of the readings leave open that not every woman seeking abortion must have that kind of ultrasound. The main point is that in context, whether it is all or some seems a weird thing to focus on – one that distracts from the issues at stake in a way that is uncomfortable, at least to me.

    Anyhow, it is unequivocally ‘standard medical practice’ to perform transvaginal ultrasound in very early pregnancy.

    These laws have indeed been challenged on the ground that they force doctors to violate basic medical ethics in several states. I know this with a high degree of certainty since I was one of the expert witnesses hired to explain exactly that point in the OK challenge, and my own words on this are in the brief itself, and I was also involved peripherally in the TX and NC cases.

  12. No, it’s not true that “the Virginia bill says simply that the ultrasound will be made pursuant to standard medical practice in the community.” The Virginia law says, additionally, in sentences both compound and complex, that the ultrasound is “for the purposes of determining the gestational age of the fetus.” So the ultrasound is not entirely up to the doctor’s discretion (not that the politicians involved seem to care about what doctors think), and is instead the ultrasound that establishes gestational point. Still, so that discussion focuses on the ethical issues rather than my wording, I shall edit the universal to reflect the very safe generalization that it will be the vast majority of women who will be forced to undergo transvaginal ultrasound.

    Slate hyperlinks to this story for the quote that transvaginal ultrasound is the method that determines gestational point in the first trimester:

    Frankly, I think those of us who have experienced transvaginal ultrasounds should be expert consultants that legislatures are required to hear from before passing such laws. I suspect that those who voted for this bill have not had the experience.

  13. You mean the Republicans don’t really oppose “socialized medicine” and that they’re not serious about all this language of government not getting between a doctor and a patient? I’m shocked, shocked to find that gambling is going on in here!

  14. On a slightly different note, though … I do wonder why no one gets up in arms about requiring pap smears as a gateway to contraception. I know that is medical practice and not a law, but I always seem to be the only one appalled by this. It is just as violating and uncomfortable, and just as completely medically irrelevant to the purpose at hand, if not more so. Yet I haven’t been able to work up any bioethical/feminist outrage about this. Why?

  15. Profbigk, I just realized I confused you and Anne again; second time this has happened recently. I swear I do not mean to lump you together. Mea culpa… Anyhow, while I don’t want to make this about anyone’s words either, I am not persuaded that it is a safe generalization that the bill would result in the vast majority of women undergoing transvaginal ultrasound. I understand perfectly that the ultrasound is directed to determination of the gestational age of the fetus, and perhaps I should have clarified above that I did not mean to suggest that a physician’s discretion under the law would be unbridled or without context.

    Rebecca noted that it is a “standard medical practice to perform transvaginal ultrasound in very early pregnancy”, and I don’t disagree (though one might view that as a mildly infelicitous fact for arguments that the law would require something that is not reconcilable with standard medical practice). What I’m not sure about is at what point in a pregnancy it could be said that the performance of a transabdominal ultrasound is clearly inconsistent with standard medical practice. Would the performance of a transabdominal ultrasound at 7 weeks be considered nonstandard? 8 weeks? Have any readers received one that early?

    The bill also states that if only the gestational sac is visible, the law can be satisfied on the basis of an assessment of its dimensions. At what stage is a gestational sac visible by transabdominal ultrasound

    And what does a doctor *currently* do in terms of making an assessment of gestational age after diagnosing pregnancy?

    Rebecca, the lower and appellate opinions in Texas did not suggest to me that the medical ethics claim was raised as such by the plaintiffs in the Texas case. Thank you for providing the additional first-hand information about the cases in the other states.

  16. Rebecca, I’m with you on the annual pap smear condition of receiving birth control. I suppose there is less general outrage because oral contraceptives do increase the risk of cervical cancer. That seems to me to justify at most informing women seeking oral contraceptives of this fact and offering them annual pap smears, but I guess others see it as enough to justify the very paternalistic medical practice.

    Nemo, I’m afraid I cannot make out how the questions you are urging are not simply distractions from the core problems with these laws. It doesn’t matter when it is standard practice to switch from transvaginal to transabdominal ultrasounds of a pregnancy that a women intends to carry to term; it is nonstandard practice to perform medically unnecessary procedures against a patient’s wishes. Even if ALL of the procedures carried out under these laws would be transabdominal, the fact remains that they would be mandatory medically unnecessary procedures: a violation of bodily autonomy and basic medical ethics. (And the suggestion that forcing a patient to undergo a medically unnecessary procedure might not be a violation of basic medical ethics is, um, surprising? Even if this fact hasn’t been the focus of every plaintiff’s case.)

  17. Adrienne, to the extent those questions are distractions from the core problems with these laws (and at least some of them, I think, aren’t, for reasons I’ll return to afterwards), then I think the responsibility for the distractions must fairly rest with those making the statements about the transvaginal ultrasounds which prompted the questions. If we all can assume for the sake of argument that all of the procedures would be transabdominal, then I agree it would be much easier to focus on what you’ve characterized as the core problems.

    But some of the questions are relevant regardless of the type of ultrasound, don’t you think? For example, I asked what doctors currently do, or what a prudent doctor should do, in order to verify gestational age? In that connection, I note that Virginia had some disciplinary/malpractice cases in recent years arising from significant underestimations of gestational age by abortion doctors.

    Rebecca, whom I have no reason to doubt on this, asserted that it is “unequivocally standard medical practice to perform transvaginal ultrasound in very early pregnancy.” Leaving aside the type of ultrasound, might one infer that what the law requires is unequivocally a standard medical practice? Is this an example of a standard medical practice that is medically unnecessary? What is the significance of “medically unnecessary” (or for that matter, “forced”), particularly in the context of elective procedures? (What you might call “medically indicated” abortions would not be conditioned on compliance with the law’s ultrasound requirement.)

    I’m wondering if it might be instructive to consider the case of the Donda West Law (enacted in California and under consideration in other states), which as I recall specifies that patients have to receive a medical checkup and clearance from their physician 30 days prior to undergoing cosmetic surgery. A number of doctors railed against this requirement (condition, really) as unnecessary and ineffective. The medical ethics argument may have come up at some point, though I don’t recall it being raised in earnest.

  18. why would it be a medical necessity to establish the age of a pregnancy one wanted to terminate?

    the slate article on this states, “There is no evidence at all that the ultrasound is a medical necessity, and nobody attempted to defend it on those grounds.” the same article says that a proposed ammendment to the bill that would have required consent from the patient (!!!) for the procedure, or would have allowed the doctor to “opt out” of the procedure, a provision which “would have allowed medical professionals to determine whether images can be obtained without being penetrated by equipment used in the ultrasound” (according to the washington post) was defeated.

    the ultrasound is performed not out of medical necessity, but out of a political mandate. requiring a transvaginal ultrasound, regardless of whether the image can be obtained otherwise, is hard to read as anything other than punishing women.

  19. Nemo, I think there is very good reason to emphasize the fact that this law requires some women to undergo unwanted and unnecessary vaginal probes: it makes the wrong here more salient.

    Perhaps it would be best to ditch talk of medical “necessity” and “non-necessity.” Early stage vaginal ultrasounds for wanted pregnancies serve a range of medical purposes. (And I bet you that women who do not want them are allowed to forego them–“allowed” in the sense that they are not denied further medical care if they refuse.) The ultrasounds required by this law serve no medical purpose whatsoever. And they are forced in the sense that women who refuse them are denied profoundly important medical care.

    So, no, I do not think any of the questions you raise are relevant to the Constitutional or moral status of these laws.

  20. SK, I’m obviously not a medical doctor, but I can think of reasons why it might be medically desirable for a doctor to determine the gestational age even if the mother was inclined to abort. For one thing, it informs the choice of procedure that is available. Medical (as opposed to surgical) abortions, I understand, are only performed up to 63 days of gestational age, and a certain kinds of medical abortion is only performed only up to 49 days. Also, even for surgical abortions, this can be important. In a 1997 Virginia case, a doctor believed a patient to be 8 weeks pregnant based on a pelvic examination and the patient’s statement about when her last menstrual period occurred. After a particular method of surgical abortion had already been initiated, the doctor discovered that the patient was really about 26 weeks pregnant; the procedure could not continue in the doctor’s office and the patient had to be admitted to hospital (where an ultrasound was performed). The doctor was subsequently disciplined by the Board of Medicine for, among other reasons, failure to appropriately determine gestational age.

    With regard to your last statement, SK, at least as far as the Virginia law goes, I thought we had established that it does not appear to require a transvaginal ultrasound if the image can (consistent with medical standards) be obtained via a transabdominal ultrasound. I’m not sure what the text of the proposed amendment was that related to determinations of whether images can be obtained without being penetrated by equipment used in the ultrasound, so it’s hard to opine how it substantively would have changed the bill. I suspect that the basis for rejecting the amendment that would have added language about consent was the majority’s belief that nothing in the bill suggested that an ultrasound could be performed on a patient who had not given legally valid consent. I have no idea what the “physician opt-out” part of the proposed amendment said; that would be interesting to read.

    I’m not sure about the concept of “medical necessity”. It seems to me that many standard medical practices are not, strictly speaking, necessities. Perhaps “medically desirable” or “medically appropriate”, or something like that, is a more relevant term.

    I’d be interested in Rebecca’s articulation of “medical necessity” and also the circumstances under which she thinks it is a violation of medical ethics for a doctor to carry out a procedure that doesn’t satisfy that definition of medical necessity.

  21. Adrienne, I think we are on the same page about possibly ditching “medically necessary” (I had not seen your last comment about that when I mentioned the idea myself).

    On the other hand, it’s one thing to argue that the ultrasounds required by the law aren’t medically necessary; whereas a well-developed argument that an ultrasound performed in compliance with the law literally serves no medical purpose whatsoever is a much harder one to make, it seems to me. Though it’s not clear that even that is constitutionally required.

  22. It borders on circular justification to refer to “an ultrasound performed in compliance with the law,” since the arguments above are about the justifications for the law requiring the ultrasound. To write in a way that implies the ultrasound is performed because it is in compliance is to connote that the ultrasound performance has prima facie justification, when this is actually the very thing at issue.

    The burden is on legislators to justify their legislation, if we are, as Ron Dworkin says, “Taking Rights Seriously.”

  23. Kate, I think you misunderstand my meaning. By an “ultrasound performed in compliance with [this] law” (were it to become law), I was merely referring to (and possibly refining slightly) the category Adrienne was using when she said that “the ultrasounds required by this law serve no medical purpose whatsoever”. I know she did not mean by this that, for example, ultrasounds *of the kind required by* this law serve no medical purpose. She had in mind ultrasound performances that would be undertaken *pursuant and in response to this law if it were enacted*. So I was trying to verbally preserve that concept, not assume anything about the justification for the law.

  24. UPDATE: Governor Bob McDonnell issued a statement today about the Virginia ultrasound bill:

    In the statement, he says that extensive discussions in the past few days with physicians, attorneys, advocacy groups and others had clearly established that “in the majority of cases, a routine external, transabdominal ultrasound is sufficient to meet the bill’s stated purpose, that is, to determine gestational age. I have come to understand that the medical practice and standard of care currently guide physicians to use other procedures to find the gestational age of the child, when abdominal ultrasounds cannot do so. Determining gestational age is essential for legal reasons, to know the trimester of the pregnancy in order to comply with the law, and for medical reasons as well.”

    McDonnell asked the General Assembly to amend the bill to make clear that it would not require a transvaginal ultrasound. And they promptly have — the amended bill has already passed one legislative chamber and now goes to the other.

    From the reporting about the original bill and now the amended bill, it looks as though there was considerable disagreement among knowledgeable folks about whether the original bill would have required transvaginal ultrasounds in the first place. But at any rate, it looks like a moot point now. We’ll have to see what happens to version 2.0 of the bill.

  25. I’m curious: why is anyone on this blog treating Nemo as anything other than a troll at this point?

  26. […] The original bill required women to undergo a vaginal ultrasound before an abortion, but the hue and outcry rendered that an unworkable piece of legislation. Now, after some politicking by self-described pro-life Gov. Bob McDonnell, the requirement is an external ultrasound. Supporters of the original bill do not seem pleased with the compromise, which leads one to believe that all they wanted was to crawl up into some stranger’s ladybusiness. Oddly, I’m not sure lawmakers are equipped to dictate best medical practice. […]

  27. occasional lurker [#28], sometimes Nemo disagrees with me to the point of pedantry, but he also, often, makes supported points and demonstrates receptivity to persuasion. I can’t designate everyone who disagrees with me in hairsplitting ways as a troll, lest I so designate the majority of my colleagues. (Ah, philosophers.)

    I should get back to that full-time job thingy, but cannot resist pointing out the circularity of the Virginia governor saying that “Determining gestational age is essential for legal reasons, to know the trimester of the pregnancy in order to comply with the law, and for medical reasons as well.” This seems like bee ess to me. Determining gestational age with the precision of an ultrasound is only “essential for legal reasons” because Virginia legislates the requirement of precision in gestational age, for heaven’s sake. You know how my sister’s pregnancy was monitored in its first trimester? With conversation, consultation, and visual assessment.

    I credit The Daily Show and The Colbert Report for the excellently negative and widespread attention to this bill.

  28. re 28: Props for someone (occasional lurker) finally calling out this person’s typically long, tedious, and tendentious comments for what, in effect, they often are. Many respondents, in this thread at least, had apparently reached a similar conclusion.

    profbigk misconstrues the implicit complaint–which is not about pedantic disagreement. Rather, much of the hairsplitting is done with, or dubiously indifferent to, obvious substantive purposes. While this approach can fit a “be nice” rule, some of us would prefer to get a clear enough statement of views that we might not feel like arguing about in a forum like this.

  29. Well, yes, of course hairsplitting is indifferent to more substantive purposes. Anyway, this isn’t the first time Nemo has been so criticized. Since comments about commenters tend to indicate the ends of threads, I’ll go ahead and close this one.

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